Magna Carta, the interstices of procedure, and Guantanamo.

Author:May, Larry

This paper is inspired by two events, seven hundred and eighty-eight years apart. The first is the signing of Magna Carta in 1215 and the second is the establishment of U.S. prisons at Guantanamo and Bagram in 2003. It may seem odd to link these two events, but I do not think it is odd at all. Magna Carta established that any person is entitled to due process of law. Guantanamo and Bagram stand for the idea that certain prisoners can be denied due process if they fall through the cracks in the various extant legal regimes. Magna Carta was an agreement extracted from King John of England by feudal barons. We need an international agreement that protects Magna Carta legacy rights so that detainees will not fall through the cracks and be deprived of their procedural rights as they were at Guantanamo.


In this paper I will explain how an understanding of Magna Carta in 1215 might provide an intriguing model for understanding "global procedural justice." The story of how Magna Carta influenced English law gives us a model, but also a cautionary tale, of how international law may develop as well. The process was a very slow and gradual one, and the process largely proceeded through gap filling, especially in the domain of procedural rights rather than substantive ones. Magna Carta laid the groundwork for English rule of law by laying out basic procedures that had to be followed, including procedures for challenging arbitrary imprisonment or exile. These procedural rights opened the door for the kind of equitable review of potentially arbitrary use of power by courts and even by the King, so that other more substantive abuses could be exposed and condemned as well. In this way, even as significant substantive rights were lacking in the legal system, procedural rights became gap fillers. Accountability was the main thing accomplished by Magna Carta and that then led to the possibility of a centralized system of law enforcement across England, just as may be true some day with international law. The process required significant input from Parliament, which extended and solidified Magna Carta's rights. Because there is no international legislature, other legal institutions will have to play the role of Parliament in extending basic procedural rights globally. (1)

In the first section of this paper, I will explain what the rights are that were first described at the time of Magna Carta and how they were abridged in Guantanamo. In section two, I provide some historical background on Magna Carta, rehearsing a story that by now has achieved wide consensus among historians. In the third section, I will explain why it was that Magna Carta's rights came to be considered fundamental law in England, and why it is especially important that fundamental law be understood in procedural terms for the development of the rule of law. In the fourth section, I draw out some parallels between the development of a legal system in England from the time of Magna Carta and the development of an international legal system today. In the fourth section, I explain some of the changes in international law that would be especially important for the eventual creation of a truly international legal system, again drawing on the model of Magna Carta. And in the final section, I respond to several objections.


    Magna Carta's Chapter 39 (normally referred to as Chapter 29, in the 1225 revised version of King Henry III) says:

    No freeman shall be taken and imprisoned or disseised ... or outlawed, or exiled, or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. (2) There are at least four distinct rights in this document. First, is the right to trial by jury, which is so important that the other rights cannot be abridged unless a jury determines that such abridgement is justified. Second, is what came to be called the right of habeas corpus, the right not to be arbitrarily imprisoned. Third, is the right not to be disseised, which meant the right not to be arbitrarily dispossessed or deprived of citizenship rights, including the rights to certain "of any free tenement or of his liberties or free customs...." (3) And fourth, is the right not to be outlawed or exiled arbitrarily, at least in part what is today called the right of nonrefoulement, namely the right not to be arbitrarily sent out of a country where one resided to another country where one was likely to be harmed. These rights, including the vaguer right not to be destroyed in any other way, are the core rights that were thought to be necessary to protect any substantive freedoms. For if one could be arbitrarily sent to prison, outlawed, or exiled, what good would substantive rights to property, or to receive compensation for military service, do.

    At Guantanamo Bay, all four Magna Carta legacy rights were violated. The right of habeas corpus was denied to these prisoners. Several prisoners were sent from Guantanamo to countries that were known routinely to use torture. The prisoners were described as being in a "legal black hole" in that they were neither within the jurisdiction of U.S. courts nor under the jurisdiction of the laws and customs of war, since they were unlawful combatants. And the prisoners at Guantanamo were denied trial by jury.

    Of most significance for my study is the right not to be arbitrarily imprisoned, which is similar to the emerging right of habeas corpus. Bracton clearly lists the writ in his De Legibus et Consuetudinibus Angliae (c. 1230), and specifies its form as follows:

    [T]hat he produce his body ["et nunc praecipietur vicecomiti quod habeat corpus"] on another day by a writ of this kind: The king to the viscount greeting. We enjoin you before our justiciaries & C. on such a day the body of A., to answer to B. concerning such a plea.... (4) Here we see the writ described as addressing the official who is detaining or jailing a person, requiring him or her merely to produce the body of the prisoner and provide an answer concerning why the prisoner should continue to be deprived of his or her freedom. So, the right of habeas corpus is not a "get out of jail free" card, but only a right to be brought out of the dungeon quite temporarily, where it may be that one is then subjected again to incarceration and suffering soon thereafter.

    The folk history of habeas corpus has it that there are three things that are important about this right. First, the body must be produced to demonstrate that the person has not merely been killed. Second, bringing the body into the light of day allows one to see if there are marks on the body indicating torture or other forms of physical abuse. Third, the public reading of the charges against the prisoner is meant to act as a deterrent against arbitrary or unlawful incarceration. It is the third factor that is often said to be the most important as a cornerstone of all other rights.

    But habeas corpus also meant more than merely being brought out of the dungeon to have the charges against one read publicly. For another key phrase of Bracton's formulation of the writ of habeas corpus is "before our justiciaries". (5) The phrase is sufficiently ambiguous that it could mean several different things. But there is one meaning that would fit nicely with a somewhat expanded notion of habeas, beyond merely the minimalist interpretation, and that is that the reading of the public charges must be in the context of some kind of hearing, before a judicial official, and not merely before the public.

    Today, habeas corpus in the U.S. means much more than the rudimentary concerns I have been discussing, and includes an examination of any violations of a person's constitutional rights. Federal habeas corpus cases are collateral attacks on the constitutional firmness of the conviction that caused the prisoner to be incarcerated. Surprisingly, perhaps, innocence is a controversial basis for a successful habeas appeal. Typically when one is successful, the remedy is either a retrial or out-fight exoneration and freedom from incarceration. The leading scholars of habeas corpus law in the U.S. call habeas "[a] civil, appellate, equitable, common law, and statutory procedure." (6) Hertz and Liebman go on to explain that habeas corpus has become a broad "surrogate for Supreme Court review" (7) of whether the petitioners "constitutional rights have been preserved." (8)

    In certain countries, those who are in prison may get out of prison and have the charges against them made public by filing a habeas corpus petition. For over eight hundred years in the English speaking world, the right to file such a petition has been sacrosanct. Important legal theorists, such as William Blackstone, have said that this procedural right is the cornerstone in the "preservation" of personal liberties, since without protection of habeas corpus a prisoner can be incarcerated in such a way that his or her "sufferings are unknown or forgotten." (9)

    There is some reason to think that historically the right not to be arbitrarily exiled was meant to cover cases of being deported so as to be deprived of basic rights. In addition, Magna Carta's Chapter 29 also speaks of the right not to be "disseised". (10) The term, disseised, meant the dispossession of one's property. (11) The very next right is the fight not to be exiled. (12) Such a connection between these rights would constitute what is today called nonrefoulement. For one way to dispossess a person of property is to exile that person to a place where the person's property rights would not be respected. Indeed, most forms of exile dispossess a person.

    The underlying moral principle of the right of nonrefoulement, and the larger rubric of rendition cases that nonrefoulement falls under, is that no one be forced to go to a State where his or her basic human rights are likely to be jeopardized...

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